In Michigan, “Alternative Dispute Resolution” (ADR) consists of either non-binding “Mediation” (formerly, “Facilitation”) or binding “Arbitration.”

Mediation is a voluntary or Court ordered process wherein the Parties involved in pending litigation (or even in “pre-suit” claims) and their respective Counsel or Representative retain the services of a qualified and experienced “Mediator” (formerly, “Facilitator”) to assist them in the successful explanation, negotiation and resolution of their dispute without the undue time, expenses, attorney fees and, most importantly, uncertainty usually associated with protracted litigation, jury trials and appeals. Evidence supporting both Parties’ positions is submitted to the Mediator prior to the hearing in an informal manner. The settlement negotiations which take place during the hearing are all “off the record” and inadmissible at trial if Mediation is unsuccessful in resolving the Parties’ dispute. With the assistance of a qualified Mediator, non-binding Mediation generally results in a very high percentage of resolved lawsuits or claims either at the initial hearing or shortly thereafter as the Mediator continues to engage the Parties and their Counsel in meaningful negotiations where that additional effort is needed. Whereas a jury trial can take several days, weeks or even months to complete with the prospect of continuing appeals, Mediation can generally be completed in less than one day and results in a full and complete resolution of the case.

ADR also includes binding Arbitration with the Mediator now serving as the Neutral Arbitrator with generally two other Arbitrators, one appointed by each side of a dispute. The Michigan Rules of Evidence may or may not apply depending on what the Parties and their Counsel agree to. Testimony from the Parties and witnesses may be taken under oath with traditional arguments by Counsel also allowed. At the conclusion of the Arbitration hearing, the Arbitration panel members confer much like a jury panel would in private to reach a binding Arbitration award. Appeals by either Party from this award are allowed under some circumstances.

However, for ADR to be truly effective in resolving pending litigation or pre-suit claims, the Parties and their Counsel must be assured that their chosen Mediator or Neutral Arbitrator will remain neutral to both sides positions throughout the process and, in the case of Mediation, will maintain the confidentiality of any information which is shared with the Mediator unless explicit authority is given to release that information to the other side. Equally important, the Mediator/Neutral Arbitrator must be fully knowledgeable of the areas of law on which the Parties’ lawsuit/claim and defenses is based and must also have lengthy past experience with what verdicts juries may have rendered in that County in similar cases in the past. In Mediation, that knowledge of the law and experience with jury verdicts can then be effectively communicated to both sides so as to move their respective settlement positions towards a meaningful and certain resolution of their case.

But, what good is it to finally locate an effective Mediator/Neutral Arbitrator if the Parties and their Counsel must wait several months for their hearing to be scheduled? Or when their hearing is in progress it becomes readily apparent that another hearing is also taking place at the same time with the same Mediator/Neutral Arbitrator or the Parties and their Counsel are being hurried out before a resolution has been reached because the Mediator’s/Neutral Arbitrator’s next hearing is about to begin? The Parties and their Counsel must be able to schedule a timely hearing and must also believe that their case is the most important case before their chosen Mediator/Neutral Arbitrator that day and that his full time and attention is being focused on their case alone.